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Prof. Malamud
Fall 2003
Con Law
Types of constitutional argument that can be used to analyze and interpret the
o Constitutional text
o Historical argument
o Structural argument
 Intent of the framers/originalism
 Framers’ intent often not clear
 Why should we be bound by their dead hands?
 Ongoing history
 Judicial doctrine
o Value arguments
Who is a valid interpreter of the Constitution?
Courts have the exclusive power to interpret the Constitution (Marbury v. Madison)
1. Marbury
a. Holding: Where a statute violates the Constitution, it is the duty of the
courts to apply the Constitution as paramount law which supersedes
inconsistent statutes.
b. These 2 principles – preeminence of the Constitution and judicial
review – were not expressly provided for in the Constitution.
c. Marbury can be read to give the judiciary power of judicial review or as
giving the judiciary the ultimate power to interpret the Constitution.
Although many have argued that other branches also have the power and
duty to interpret the Constitution, the Court increasingly contends that it
has the ultimate power to do so.
2. The Constitution is a law and should be interpreted by people who are good at
interpreting laws (the judiciary). This implies that the Constitution is a law like
any other and ignores the possibility that the Constitution might be different from
the laws courts usually enforce and interpret.
3. Judicial review provides a check on the legislature. Even in a world with active
public political participation, judicial review is still necessary to:
a. Prevent a tyranny of the majority over the minority.
b. Protect against the majority’s collective action problems experience by
needing to be the “aroused public” all the time.
4. Expertise, finality, and independence all lead to a judicial supremacist view.
a. Is the court’s neutrality compromised when dealing with issues of
federalism? (McCulloch v. Maryland.) The court will probably be
interested in advancing a federal agenda over a state one.
Prof. Malamud
Fall 2003
Con Law
5. The court can defer to the legislature on questions of structure of government, as
long as “the great principles of liberty are not concerned” according to
McCulloch v. Maryland.
6. Remember: Not everything gets to the courts. Before things reach the judicial
branch, other interpretations have been tried. This creates a balance.
7. Federal judges should have more authority than state judges, because state judges
represent only the electorate of their state, not the nation as a whole. Martin v.
Hunter’s Lessee; Cohen v. Virginia
8. If you have judicial review, according to Kramer, you must strike a balance
between accountability and independence.
States and their institutions can be Constitutional interpreters
1. This was Maryland’s argument in McCulloch v. Maryland. If the Constitution
emanates from the states rather than the people, it should be the states’
interpretation that binds. Marshall smacks down this argument, saying that the
people ratified the Constitution and not the states, so this would not be a valid
argument today.
2. The states are suspect interpreters because of their conflicts of interests.
The People can be Constitutional interpreters.
1. If the entire citizenry is on a course, the Supreme Court can’t change it. Giles v.
Harris  This looks like the Supreme Court copping out. Even if the Supreme
Court didn’t want to intervene with a ruling, it is still part of a conversation with
the other branches of government and can send signals to them.
2. When the people speak, is there a sense of recognition that can tell us if the
people are speaking about the Constitution or just about what outcomes they
want? Is there any space between these two?
a. Is it possible for the people to be so out of whack with their desires that
they desire something unconstitutional?
3. The Supreme Court has to give reasons when it makes decisions. The people
don’t have to give reasons when they do things to express preferences like elect a
president. We want this statement of reasons.
Administrative and Regulatory Agencies  Through delegation of power. This issue
doesn’t really come up until the New Deal.
1. In Jones & Laughlin, the Supreme Court is soothed by the language that suggests
the agency will consider a company’s interstate-ness on a case by case basis.
Kind of looks like judicial review.
Different tools of Constitutional interpretation have different implications for what the
Constitution will say and who should be interpreting it.
1. Text  If we think of the Constitution as text, then people who are good at
analyzing texts (e.g., lawyers, judges) should be interpreting it.
2. Purpose  If we think of the Constitution as purposive analysis, is the court’s
supremacy still so clear?
3. Intent  Should we be trying to ascertain the intent of the Framers, even if we’re
dealing with situations they never could have imagined?
4. Morality/Politics  Do we want the courts meddling in these areas?
In an emergency, is the president entitled to think first of what the country needs and
second of the Constitution?
Prof. Malamud
Fall 2003
Con Law
1. Lincoln in the Civil War (especially the Emancipation Proclamation)
2. Truman in Youngstown (see especially Jackson’s concurrence)
Congressional sources of power:
1. Commerce Clause
2. 14th Amendment
3. Spending power  power to tax and spend for the general welfare. That
language is as broad as you get.
a. United States v. Butler  Congress can tax, but the taxing has to be
genuine revenue-raising and not regulation in disguise.
4. Treaty power  Chinese Exclusion Cases
How should the Constitution be interpreted?
Is the Constitution meant to limit (McCulloch v. Maryland):
1. the goals Congress can try to achieve, OR
2. the means Congress can use to achieve those goals?
Important question: Is Constitutional interpretation the same no matter who is doing it?
The Constitution is a form of customary law refracted through a text over time (Kramer).
It isn’t the text, but rather what it has been made into by different people who have
worked with it over time.
Legitimacy of the Reconstruction Amendments
1. The Reconstruction amendments were incorporated by steamrolling over the
South. The north kept changing the rules of the game for re-entry into the Union
(which is at loggerheads with the idea that secession never really happened
because it was unconstitutional).
2. Although the Reconstruction amendments may have been illegitimate at the time
of their adoption, they should still be included in Constitutional interpretation
today as part of valid jurisprudence because, taking Kramer’s view, they have
been included for so long. People have structured their behavior around their
validity, and so we cannot now invalidate them regardless of their legitimacy at
the time of their adoption.
 The Supreme Court basically stayed out of the question of whether the
Reconstruction amendments were legitimate.
 But the Supreme Court has interpreted the amendments as if they were
legitimate and as if we the people adopted them, so there isn’t much room
for legalistic debate.
3. The Supreme Court eventually narrowed the power of the 14th Amendment and
took away its federal enforcement power. Slaughterhouse Cases
Is there any leeway for how to interpret the Constitution in moments of crisis?
1. Lincoln during the Civil War  Congress ratified his decisions, but he acted
outside the bounds of executive power.
2. Enforcement Acts  tried to allow federal prosecutors to go after private crimes
in the Reconstruction era. These stretched the Constitution to its limits and were
eventually overturned.
Prof. Malamud
Fall 2003
Con Law
Colorblindness versus anti-subordination  Ways of understanding the laws during this
period. Remember DM’s Venn Diagrams with the core and how the penumbra of
protection extends.
1. Colorblindness: If the races were reversed, would the case come out the same?
 By making the law apply to both the majority and the minority, you give
everyone a stake in the outcome. You protect the core by going broader.
 Passing redistributive amendments might exceed Congress’s limits.
2. Anti-subordination: The laws apply only to subordinated groups.
 Whatever it would mean to apply discriminatory laws to whites, it
wouldn’t be a badge of inferiority.
There must be room to disentangle oneself from the framers’ vision and adapt to
changing circumstances. See stirring rejection of originalism in Home Building & Loan
Association v. Blaisdell.
A means-ends analysis can be a way of smoking out whether Congress’s stated reason for
doing something lines up with its real reason. Railroad Retirement Board v. Alton.
Where possible, the court must try to preserve a statute’s constitutionality. NLRB v.
Jones & Laughlin Steel Corp.
1. Concept of federalism
a. Federalist system  National and state governments co-exist.
b. Federal government has limited, enumerated powers.
i. There is no federal, general police power. But under Art. I, § 8, Congress
has the power to tax and spend for the general welfare.
ii. States have police powers.
2. Necessary and Proper Clause
a. Delegates broad power to Congress. McCulloch v. Maryland.
b. If Congress seeks an objective that is within the specifically enumerated powers,
then Congress can use any means that is:
i. Rationally related to the objective Congress is trying to achieve; and
ii. Is not specifically forbidden by the Constitution.
iii. Specific language: Let the end be legitimate, let it be within the scope of
the Constitution, and all means which are appropriate, which are plainly
adapted to that end, which are not prohibited, but consist with the letter
and spirit of the Constitution are constitutional.
3. To pass muster, a congressional action must satisfy two tests:
a. Must fall within some specific grant of power under the Constitution.
b. Must not violate any specific constitutional provision.
Protection for slavery was found in 3 main places in the Constitution:
1. Clause precluding Congress from regulating the international slave trade until
a. Fehrenbacher called this a beacon of hope.
Prof. Malamud
Fall 2003
Con Law
b. It could also have been pro-slavery, if the slaveholders believed that the
international slave trade would not be regulated even in 1808 or beyond.
Also, the slaveholders knew they could import slaves from Virginia, so
this may have been an easy concession for them.
c. Ultimately, legislation was passed in 1807 to bar the international slave
trade, but this met with little protest from the South. This was possibly
because there was a net population gain among the slaves.
3/5 compromise for representation
a. For taxation, the South argued that slaves were not as productive as free
white workers and should count as less  3/5
b. For representation, the South wanted slaves to count as full persons, but
the north thought this would give the South overrepresentation in
Congress  3/5
Fugitive slave provision
Guarantees were also found in more minor places:
a. Guaranteed protection against insurrection (i.e., slave rebellion).
b. Republican form of government
c. Structure of Senate and Electoral College
Remember: Even people who were anti-slavery were not talking about full
equality for African-Americans. There was a lot of fear over what might happen
if this subjugated population suddenly became free.
a. The Fugitive Slave Clause was one way for the north to control the
quantity of African-Americans in their midst.
Protection of property: The north wanted to have their property protected as
well, so they left it up to the legislature to determine what counted as property
(i.e., slaves).
a. The Antelope Case involved both liberty and property concerns, but, at
the time, there was no hierarchy privileging liberty above property.
b. A national environment was created in which all forms of property were
Emancipation Proclamation → freed the slaves. Slaves were property. If you
could free this kind of property, why could you not seize land?
During Reconstruction, there was debate over how to deal with protecting the
rights of the freed slaves.
a. Freedmen’s Bureau → Designed to affirmatively protect the interests of
the freed slaves in new ways. Vetoed by Johnson
i. Not overriding Johnson’s veto shows that the Congress was not
willing to protect the rights of free blacks in all ways.
ii. The general policy of dealing with freed slaves rejects affirmative
protection of rights.
Symbolic Victories
a. Do symbolic victories matter when the situation on the ground remains
b. The line between actual remedies and symbolic intervention against
facial exclusions can always be attacked.
Prof. Malamud
Fall 2003
Con Law
c. Right to not have people of your race excluded from a jury on the basis of
their race. This does not prohibit the use of other exclusionary measures
like literacy tests, payment of poll taxes, etc. Strauder v. West Virginia
i. Remember, when boundaries like this are applied even-handedly,
they exclude poor whites as well.
ii. The court was willing to attack de jure racism, but not de facto
d. The Supreme Court’s statements that the Constitution is colorblind in
cases like Strauder v. West Virginia and Plessy v. Ferguson ignores the
fact the exclusions of blacks are badges of inferiority.
10. Jim Crow was not inevitable. During the Redemption period, white elites thought
it was unnecessary to pile humiliation upon humiliation on blacks. They wanted
their votes and tried to convince the blacks that their former masters had their best
interests in mind.
11. Integration in schools was also not a goal for blacks at the beginning. It was
known that if black children attended integrated schools, they would have
language of inferiority spewed at them, and this was not desirable.
a. This remained an issue in school desegregation after Brown v. Board of
Education. Black teachers opposed speedy desegregation because they
would lose their jobs (having been hired with far lower qualifications than
their white counterparts) and see the black students they cared about be
subjected to constant reminders of their supposed inferiority.
b. Public transportation desegregation did not have the same downsides.
There were important implications for human dignity, especially for
blacks who were better off. There was no concept of class stratification
for blacks like there was for whites.
12. There were also economic anti-segregationist or pragmatic anti-segregationist
arguments being made. The railroads, for example, didn’t want to segregate
because it was more expensive for them in Plessy v. Ferguson.
13. There were also arguments made by people who did not hate blacks in favor of
segregation. They thought that it would minimize racial hatred and violence,
although they were wrong about that. Segregation makes blacks easier targets.
14. Civil Rights Cases  motivated by the lynching going on in the South and not by
the exclusion from public places that was brought up in the suit. Murder is one
area where states normally exercise their police power, but this was not
happening. There is an issue in these cases of state action versus private action.
The lynchings could not have been happening without complicity from the state,
yet, technically they were private actions.
a. The courts said that it was time for the African-American to cease being a
special favorite of the laws.
15. Remember: Anything that raises the status of whites without raising the status of
other minorities creates a further gap between whites and minorities.
1. Chinese
Prof. Malamud
Fall 2003
Con Law
o Criticized by Harlan in his dissent in Plessy v. Ferguson as being even more alien
than blacks but still allowed to ride in the railcars with whites.
o There were legitimate, non-racist reasons for saying that the Chinese were
different from other immigrant groups  unlike other immigrants, the immigrants
from China were almost exclusively male and did not participate in the “typical”
American life centering around the nuclear family.
o In Korematsu v. United States, the exclusion orders are defined in terms of what
Congress can do under the war powers, not as racial issues.
o In Mexico, there was no distinction of rights between Mestizo and pure Spanish
citizens. When the United States got territory from Mexico in the Treaty of
Guadalupe Hidalgo in 1848, affected states imposed racial distinctions on their
new citizens.
Native Americans
o Under Elk v. Wilkins in 1884, a single Native American could not repudiate his
tribal affiliation and become a citizen of the United States.
o Later, all Native Americans were made U.S. citizens.
o Was Indian-ness a racial classification or a sovereign classification?
o Under Minor v. Happasett in 1874, the 14th Amendment could not be used as the
basis from granting women’s suffrage.
o Some suffragettes took a racist attitude, questioning how black men could be
given the vote but not white women.
o Key case: Reynolds v. United States
o The same rhetoric used about slaves was used in regard to Mormon wives.
o The Supreme Court wanted to identify polygamy as Asiatic and African so they
could call it barbaric and immoral.
Filipinos and Puerto Ricans
o In Insular, Harlan said these people could not be expected to assimilate. Had to
weasel around Dred Scott to do this by saying that natural rights are for everyone,
but artificial rights can be withheld.
Overall Point: To be an empire, we must be able to annex territory but resist
incorporating those people into the U.S.
The New Deal tended to favor whites over minorities and males over females. Eleanor
Roosevelt worked on minority issues, and sometimes she could convince FDR of her
position and sometimes not. In the case of women, the epitome of the deserving poor
was a retired, male worker, not a female.
Exam Tips:
Prof. Malamud
Fall 2003
Con Law
If there is a question in which Congress is doing something, ask yourself, “Can what
Congress is doing be justified as an exercise of the commerce power?” Most of the time,
the answer is yes.
The Court takes a fairly deferential view of whether a particular action falls under the
Commerce Power. So long as the regulated activity substantially affects interstate
commerce, the regulation will be found to fall within the Commerce Power.
o Even if a particular commercial activity being regulated seems to take place solely
intrastate, the Court will usually find that when all similar activities are
considered as a class, they have a cumulative effect on interstate commerce.
o Remember that Congress may ban/regulate interstate transport as a way of dealing
with local problems.
o However, look out for congressional regulation of activities that are not really
commercial. Here, there is a much better chance that the Court will find the
activity does not substantially affect interstate commerce. Cite to US v. Lopez in
this situation.
Examples of situations where the regulation would probably be invalid as not
substantially affecting interstate commerce.
o Congress prescribes the curriculum public schools use.
o Congress makes it a federal crime to commit a gender-based violent crime against
a woman. Morrison.
o Congress bans marriage under the age of 18.
o  But if there is a jurisdictional hook, the regulation is probably okay.
Be alert for fact patterns where Congress is regulating the states. Such regulation raises a
Tenth Amendment issue.
o So long as Congress has merely passed a generally applicable law, this law can
apply to the states just as it does to private individuals and there is no 10th
Amendment violation.
o But Congress may not directly compel the states to enact or enforce a federal
regulatory program. Printz. When Congress does this, it violates the 10th
Comes from Article I, § 8.
Test for commerce power: A particular Congressional act comes within Congress’s
commerce power if both of the following are true:
1. The activity being regulated substantially affects commerce, and
2. The means chosen by Congress is “reasonably related” to Congress’s objective in
Four broad categories in which Congress can use the Commerce Power:
1. Channels: Congress can regulate the use of the channels of interstate commerce,
even if the activity in question is completely intrastate.
2. Instrumentalities: Congress can regulate instrumentalities of interstate commerce,
even though the particular activities being regulated are completely intrastate.
Prof. Malamud
Fall 2003
Con Law
3. Articles moving in interstate commerce: Congress can regulate articles moving in
interstate commerce.
a. Champion v. Ames  lottery tickets. This looked like an attempt to regulate
public morals papered over with commerce regulation. The means (regulating
interstate commerce) were acceptable, but the ends (public morals) were
4. “Substantially affecting” commerce: Congress may regulate those activities having
a substantial effect on interstate commerce. Jones & Laughlin Steel; U.S. v. Lopez
a. The current of commerce rationale, which affected the analysis in Schechter
Poultry, was abandoned in Jones & Laughlin Steel. After Jones & Laughlin
Steel, it was irrelevant whether the activity being regulated occurred before,
during or after the interstate movement so long as the regulated activity had a
substantial economic effect on interstate commerce.
b. Activity is commercial. If the activity is commercial, it doesn’t seem to matter
whether the particular instance of the activity directly affects interstate commerce,
as long as the instance is part of a general class of activities that collectively
substantially affect interstate commerce. Wickard.
i. Wickard established the cumulative effects theory. That theory provides
that Congress may regulate not only acts which taken alone would have a
substantial economic effect on interstate commerce, but also an entire
class of acts, if the class has a substantial economic effect (even though
one act within it might have virtually no interstate impact at all).
ii. Hammer  Child labor held not to affect interstate commerce.
iii. Overruled by Darby. Congress is completely free to impose whatever
conditions it wishes upon the privilege of engaging in an activity that
substantially affects interstate commerce, so long as the conditions
themselves violate no independent constitutional prohibition.
c. Activity is not commercial. If the activity itself is not commercial, then there
will have to be a pretty obvious connection between the activity and interstate
i. U.S. v. Lopez  Guns in school not sufficiently connected.
ii. U.S. v. Morrison  Violence against women not sufficiently connected.
d. After Lopez, the Court gives less deference than it used to to the fact that
Congress believed the activity had the requisite substantial effect on interstate
commerce. It will no longer be enough if Congress has a rational basis  the
effect must in fact exist.
e. If what is being regulated is an activity the regulation of which has traditionally
been the domain of the states, and as to which the states have expertise, the Court
is less likely to find that Congress is acting within its Commerce power.
Examples where the Court is especially likely to be wary of congressional
i. Education
ii. Family law
iii. Criminal law
Commerce clause serves 2 distinct functions:
1. It acts as a source of Congressional authority.
Prof. Malamud
Fall 2003
Con Law
2. It acts, implicitly, as a limitation on state legislative power.
Two industries are almost always considered local:
o Agriculture
 Cf. Schechter Poultry Corp. v. US
 Cf. Wickard v. Filburn
o Manufacture
The clause precluding Congress from regulating the slave trade until 1808 was a
limitation on the enumerated power of the Commerce Clause.
Gave the federal government the power to deal with the Indians, although most Native
American questions don’t come up as Constitutional matters.
In the antebellum period, most Commerce Clause cases came up in a posture of dormant
Commerce Clause/dormant Congress with respect to the Commerce Clause. Then you
had to ask if Congress’s power to legislate precluded the states from legislating in certain
areas, even when Congress had taken no action. Gibbons v. Ogden
o Marshall hinted in Gibbons v. Ogden that Congress’s power to legislate would
preclude the states from legislating even where Congress took no action. Looks
like there might be a means/ends test going on here.
o In Gibbons v. Ogden, Marshall articulated a broad vision of the Commerce
 Commerce extended beyond navigation to include commercial intercourse.
 Regulate involved the power to prescribe the rule by which commerce
could be governed.
 Among the states did not include that commerce which is completely
internal, which is carried on between man and man in a State, or between
different parts of the same State, and which does not extend to or affect
other States. Implicitly, it did include commerce which affected another
state even though it did not involve crossing a state line.
 Much of this discussion was in dicta.
o In Mayor of the City of New York v. Miln, the court held that if the state is
legitimately legislating for an end within its purview, it can use whatever means it
wants, even if those means affect interstate commerce.
o Vis-à-vis the dormant Commerce Clause, the court focused in Cooley on
whether the subject matter being regulated was local or national. Cooley held
that states could not regulate matters needing a uniform national approach but
could regulate local matters.
Commerce Clause + Slavery  Groves v. Slaughter
o States’ rights were an anti-slavery tool used to create barriers to slavery within a
o If commerce in slaves is viewed as interstate commerce, then it is within the
province of the federal government. If states can’t use their police power to
regulate it, then states that want to take a stand against slavery won’t be able to.
Modern Doctrine: State of the law after Lopez and the cases decided under it:
o Effect must be significant: The activity being regulated must be one that
significantly affects commerce. An incidental effect on commerce is not enough.
o Commercial transactions: When the transaction being regulated is itself a
clearly commercial or economic one, the Court will probably allow Congress to
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Prof. Malamud
Fall 2003
Con Law
regulate that transaction, even if it is completely intrastate, as long as it is part of
a class that, in the aggregate, substantially affects interstate commerce. Wickard.
 Noncommercial transactions: Where the activity being regulated is
essentially non-commercial, the Court apparently will not regard the
aggregate impact of that activity on interstate commerce as being
sufficient, unless either:
 The causal link is extremely short and direct OR
 The item being regulated, although noncommercial, crosses state
lines or enters the stream of interstate commerce.
o Thus Morrison was too indirect.
o Findings: The fact that Congress has made particular findings that an activity
substantially affects interstate commerce might make some difference, but is
unlikely to be dispositive very often. At most, legislative findings will tip a close
case into the category that can be regulated.
o Jurisdictional Hooks: Where Congress drafts the statute in a way that requires a
jurisdictional hook between the particular activity and commerce, the act is more
likely to be found within the Commerce Power.
 In Lopez, the Court notes with disfavor the lack of a jurisdictional hook
but annoyingly does not say what the outcome would be if the statute had
one. Best not to presume too much about the helpfulness of a
jurisdictional hook.
Summary of modern view: There are four broad categories of activities in which
Congress can constitutionally regulate.
1. Channels: Congress can regulate the use of channels of interstate commerce. Thus,
Congress can regulate in a way that is reasonably related to highways, waterways,
and air traffic. Presumably, Congress can do so even where the activity is quite
2. Instrumentalities: Congress can regulate the instrumentalities of interstate
commerce even though the threat may come only from intrastate activities  Lopez.
This category refers to people, machines, and other “things” used in carrying out
3. Articles moving in interstate commerce: Congress can regulate articles moving in
interstate commerce.
4. Substantially affecting commerce: The biggest category that Congress may regulate
is those activities having a substantial effect on interstate commerce  Lopez. The
following rules seem to apply:
a. Real bite: the requirement of substantial effect has real bite.
i. Activity is commercial: If the activity itself is arguably commercial, then
it doesn’t seem to matter whether the particular instance of the activity
directly affects interstate commerce, as long as the instance is part of a
general class of activities that, collectively, substantially affect interstate
commerce. Wickard.
ii. Activity is not commercial: But if the activity itself is not commercial,
then there will apparently have to be a pretty obvious connection between
the activity and interstate commerce.
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Prof. Malamud
Fall 2003
Con Law
1. It will have to be more obvious that guns-in-schools-andcommerce from Lopez or gender-violence-and-commerce from
2. This is probably the lasting legacy of Lopez and Morrison.
b. Little deference to Congress: The Court won’t give much deference (as it used
to) to the fact that Congress believed that the activity has the requisite substantial
effect on interstate commerce. The Court will basically decide this issue for itself,
from scratch. It will certainly no longer be enough that Congress had a rational
basis for believing that the requisite effect existed. The effect must in fact exist to
the Court’s own independent satisfaction.
c. Traditional domain of states: If what’s being regulated is an activity the
regulation of which has traditionally been the domain of the states, and as to
which the states have expertise, the Court is less likely to find that Congress is
acting within its Commerce power. Thus, education, family law and general
criminal law are areas where the Court is likely to be especially suspicious of
congressional “interference.”
i. The fact that the activity has traditionally fallen within the states’ domain
can be outweighed by a showing that a national solution is needed. This
would be so, for instance, where one state’s choice heavily affects other
states. Example: Environmental regulation.
Civil Rights Legislation: Key use of the Commerce Power has been in civil rights
1. Court decisions: The Court upheld the use of the Commerce Power in two
significant cases involving what might have aptly been termed local enterprises.
a. Heart of Atlanta: Π was a motel in downtown Atlanta which refused to rent
rooms to African-Americans.
i. Had contacts with interstate travel.
ii. Holding: Hotel could constitutionally be reached by the Civil Rights Act
under the Commerce Clause.
iii. Police powers motive acceptable: Nor was the Court troubled by the fact
that Congress’s motive for this legislation was primarily moral and social,
not economic.
b. Ollie’s Barbecue (Katzenbach v. McClung): Overwhelmingly local.
i. Facts: Barbecue restaurant located pretty far from any interstate highway,
train or bus station. There was no evidence that an appreciable part of its
business came from out-of-towners. However, 46% of the food purchased
by the restaurant during the previous year had been bought from a supplier
who had bought it from out of state. (Recall: The Civil Rights Act applies
to any restaurant a substantial portion of whose food has moved in
interstate commerce.)
ii. Application of Act upheld: Returned to a Wickard rationale  the
restaurant’s discriminatory conduct was representative of a great deal of
similar conduct throughout the country.
iii. Deference to Congress’s findings: The fact that the bill contained no
congressional findings didn’t render the Act unconstitutional.
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Prof. Malamud
Fall 2003
Con Law
2. Effect of Lopez and Morrison: It is unclear whether these 2 cases would change the
results in Heart of Atlanta or Ollie’s Barbecue. Ollie’s Barbecue is definitely the
more suspect of the two, but it has a more obvious commercial nature than guns in
schools or gender-based violence.
The Tenth Amendment as a Limited on Congress’s Power
Between Carter Coal (1936) and National League of Cities (1976) (40 years), the Court
did not invalidate a single federal statute on the grounds that it violated state or local
government sovereignty.
Between 1976 and 1985, the 10th Amendment enjoyed a brief renaissance as an important
limit on federal power under the Commerce Clause. The 10th Amendment was held to
bar the federal government from doing anything that would impair the states’ ability to
perform their “traditional functions.”
o National League of Cities v. Usery  Court unexpectedly ruled that the 10th
Amendment barred Congress from making federal minimum-wage and overtime
rules applicable to state and municipal employees. Vote: 5-4.
 Rationale: Though wage/hour regulations could unquestionably be
constitutionally applied to private employers under the Commerce Power,
when applied to state employees, they violated an independent 10th
Amendment requirement that: “Congress may not exercise its power in a
fashion that impairs the States’ integrity or their ability to function
effectively in the federal system.” The wage/hour rules violated this
requirement in 2 ways:
 Cost: Compliance would have cost the states and their municipal
subdivisions substantial sums.
 Removal of discretion: Stripped the states of their discretion to
decide how they wished to allocate a fixed pool of funds available
for salaries.
 Summary: If the wage/hour rules were allowed to stand, Congress would
have the right to make fundamental employment decisions regarding state
employees and there would be little left of the states’ separate and
independent existence.
 National League of Cities was on thin ice from the beginning. The fifth
vote was from Blackmun, whose concurrence expressed wavering
In 1985, this line of cases was flatly overruled in a stunning reversal of doctrine.
o Garcia v. SAMTA
 Blackmun joined with the four dissenters (Brennan, White, Marshall and
Stevens) from National League of Cities to declare that case overruled
 Difficulty of line drawing: It was difficult, if not impossible, to identify
an organizing principle that would distinguish between those functions
that are traditional governmental functions and those that are not.
 Problem of subjectivity: Any rule of state immunity that looks to the
traditional, integral, or necessary nature of government functions
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inevitably invites an unelected federal judiciary to make decisions about
which state policies it favors and which it dislikes.
 Procedural safeguards: The rejection of National League of Cities did
not mean that there are no limitations on the federal government’s right to
use its delegated powers to impair state sovereignty. State sovereign
interests are protected by procedural safeguards inherent in the
structure of the federal system, not by judicially created limitations on
federal power. Examples:
 Each state is required to have 2 senators.
 States are given general control over electoral qualifications for
federal elections.
 States have a special role in presidential elections through the
Electoral College.
 Dissent: The majority opinion makes federal political officials invoking
the Commerce Clause the sole judges of the limits of their own power.
 Significance: Garcia appears to mean that once Congress, acting pursuant
to its Commerce Power, regulates the states, the fact that it is a state being
regulated has virtually no practical significance – if the regulation would
be valid if applied to a private party, it is also valid as to the state.
 The majority is saying that there are constitutional protections
against congressional interference with state sovereignty, but
whatever limits exist inhere in the structure or process of
congressional lawmaking.
 Later cases cut back on the holding in Garcia. See, Printz v. US.
o Printz v. US  Court held that Congress may not compel a state or local
government’s executive branch to perform functions. This is true even if the
functions are fairly ministerial and easy-to-perform and even if the compulsion is
only temporary.
 Decision:
 Rationale: It is an essential attribute of the states’ retained
sovereignty that they remain independent and autonomous within
their sphere of authority.
 Basis: It is unclear if Scalia believed any particular constitutional
provision had been violated. He seemed to be relying on a general,
non-textual principle of state sovereignty, rather than on any
specific clause. He refers to the 10th Amendment only
occasionally and in passing.
 Dissent: The main dissent by Stevens argued that:
 The Commerce Power gave Congress the authority to regulate
 This being so, the necessary and proper clause gave Congress the
right to implement its regulation by temporarily requiring local
police officers to perform the ministerial step of identifying
persons who should not be entrusted with handguns.
 This is especially true because Congress could have required
private citizens to help with this identification, and the 10th
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Amendment provides no support for a rule that immunizes local
officials from obligations that might be imposed on ordinary
Control over purse strings: Presumably, Congress could get around the
problem by conditioning the state’s or local government’s receipt of
federal funds on its officials’ willingness to do the federal bidding.
Significance: Seems to stand for the proposition that Congress may not:
 Force a state to legislate or regulate in a certain way.
 Require state executive-branch personnel to perform even
ministerial functions.
 Distinguished from Garcia: Garcia seems to apply mainly to
generally applicable federal lawmaking. Garcia holds that where
Congress passes a generally applicable law (e.g., minimum wage
requirements that apply to all or nearly all businesses), the 10th
Amendment does not entitle a state’s own operations to an
exemption, merely because it is a state that is being regulated along
with all the other private entities. But where the federal
government tries to force a state or local government to enact
legislation or regulation or tries to force state or local officials to
perform particular governmental functions, this is not part of a
generally-applicable federal scheme, and is instead directed
specifically at the state’s basic exercise of sovereignty: the state’s
right to carry out the business of its government. Under Printz, the
federal government may not use coercion like this.
 Regulation of states as actors: If the states choose to conduct
certain activities themselves, Congress may regulate how they do
so, without being deemed to “commandeer” state processes.
o Achievement of otherwise disallowed objectives: If
Congress could not achieve objective X by direct regulation
because that would lie beyond its enumerated powers, it
could use its conditional spending power to achieve that
result indirectly by, e.g., depriving the states of money if
they do not achieve the regulatory result. South Dakota v.
Dole. This is subject to the following restrictions:
 Expenditures have to be for the general welfare.
 Congress must state the conditions clearly.
 Conditions have to relate to the federal interest in
the national program.
 Expenditures cannot violate any independent
constitutional requirement.
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The powers to tax and spend are enumerated powers under Art. I, § 8, so Congress may
tax and/or spend to achieve the general welfare, even though no other enumerated power
is being furthered. US v. Butler.
The 10th Amendment is basically dead as a limit on Congress’s using its spending power
in areas of primarily local interest.
Achievement of otherwise disallowed objectives: If Congress could not achieve
objective X by direct regulation because that would lie beyond its enumerated powers, it
could use its conditional spending power to achieve that result indirectly by, e.g.,
depriving the states of money if they do not achieve the regulatory result. South Dakota
v. Dole.
o This seems like an easy way to do an end run around Printz.
10th Amendment  Any power not expressly given to the federal government is reserved
to the states.
See United States v. Butler  There was no enumerated power to support the
Agricultural Adjustment Act. Therefore, the power was delegated to the states, and
Congress encroached on the territory of the states.
Prigg v. Pennsylvania  Struggle between northern, anti-slavery states who wanted to
ignore the provisions of the Fugitive Slave Act, southern states who wanted the Fugitive
Slave Act to be enforced, and the federal government. In an area of legislation like this,
there can be 2 approaches:
Only the states have the power to act in the area.
States and the federal government have concurrent jurisdiction absent conflict
In Schechter Poultry Corp. v. US, the Supreme Court expressly rejected the idea that the
federal government has the right to meddle in state affairs to avoid the race to the bottom.
In both domestic and foreign spheres, much of the president’s power is implied through
Article II, § 2.
1. The president may not make laws; he may only carry them out. Youngstown
Sheet & Tube Co. v. Sawyer
As articulated in Youngstown, there are 3 categories for analyzing the president’s power:
1. Maximum authority: Where president acts pursuant to an express or implied
authorization of Congress.
2. Minimum authority: Where president acts in contradiction to express or implied
will of Congress.
3. Zone of twilight: Where president acts in absence of either congressional grant or
denial of authority. He and Congress may have concurrent authority, or the
distribution of authority may be uncertain.
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It is well-settled that the president may commit our armed forced to repel a sudden attack
on the US itself. Prize Cases. It is not clear if he may do the same with an ally or
whether he may launch a preemptive strike.
Slavery provisions ► Seen as ways to safeguard property and wealth in the form of
slaves (e.g., Fugitive Slave Clause, 3/5 Compromise)
Suffrage was only for people with property up until about 1820. People without property
expressed themselves through such means as public protest, which were considered
illegitimate by the voting polity.
Emancipation Proclamation  If slaves are property, and you can free them, then why
can’t you seize land? The Emancipation Proclamation could have gone places that it
didn’t end up going.
Being able to pass for white was, at times, considered a property right. Plessy v.
Ferguson. In Plessy v. Ferguson, one issue was that Plessy was deprived of his property
right (as an octoroon) without due process to pass for white by being forced to sit in the
colored car.
Shelley v. Kraemer  Outer limits of the law of state action.
o Its analysis is structured strangely, and the Court backs off of this position later,
partly out of the fear of how far this case could conceivably go.
o The Supreme Court held in this case that judicial enforcement of the restrictive
covenants would constitute state action and would therefore violate the
Fourteenth Amendment.
 Note: The Court noted that this was not a case in which the state was
simply remaining inactive while one private person discriminated against
How should US citizenship be defined? Is it a bundle of rights, analogous to the bundle
of rights we talk about in property? Citizenship doesn’t necessarily equal equality in the
antebellum period, as we see from the examples of women and blacks. Dred Scott v.
Sandford.  2 ways to divide the bundle of sticks:
1. You only have some rights (voting, standing to bring suit).
2. You only have rights in some states.
McCulloch v. Maryland
Is judicial supremacy really asserted in Dred Scott v. Sandford, or is the court just saying
that whenever there is a serious problem, whichever branch of the government has the
problem in their hands is obligated to try to fix it?
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Can the court take a leadership role? If the court in Plessy v. Ferguson had called for
equality without separateness, would it have overstepped its bounds? Maybe we like to
leave decisions like these to the legislature, where there is more accountability.
Language: No state shall pass any law interfering with the obligation of contracts. Art. I,
§ 10, clause 1.
o The Contract Clause does not apply to the federal government.
Certain conduct attacked under the Contracts Clause will be judged by the intermediate
standard of review.
During/after Reconstruction, there was an idea that the federal government should protect
freed slaves’ right to contract and nothing more.
If you operate under a free labor ideology, and black men are free to contract, then they
are free for legal purposes and it does not make sense to withhold the vote from them
Both Contracts Clause analysis and substantive due process analysis are about the power
of states to enact legislation that interferes with what would otherwise be the operation of
the free market in contract terms.
While the Contracts Clause cannot be used for naked redistributive purposes, but it can
impair the obligations of contracts when doing so would be inconsistent with the general
public interest. Home Building & Loan Association v. Blaisdell.
o The Court held that the state had at least the right to temporarily delay
enforcement of a mortgage’s literal terms where vital public interests would
otherwise suffer.
In Plessy v. Ferguson, the Supreme Court could have expanded its interpretation of this
amendment to declare that separate railcars are badges or symbols of servitude. Instead,
they decided the 13th Amendment deals only with slavery, and separate railcars are not
There is still some debate over badges.
o What qualifies as a badge or incident of servitude/slavery? The Civil Rights
Cases could have been decided under this amendment, if the majority had been
willing to take a broader view of badges and incidents of servitude.
o The court has difficulty deciding the Civil Rights Cases under this amendment
because in the antebellum period, no one thought that restrictions on the rights of
movement of free blacks was a badge or incident of servitude.
Unlike the 14th and 15th Amendments, the 13th Amendment is not explicitly limited to
governmental action. It can be a useful way for Congress to reach private action.
o It’s not clear whether private discrimination based on non-racial grounds (e.g.,
ancestry, ethnic background, religion, sex, etc.) can be barred by Congress acting
pursuant to the 13th Amendment.
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Purpose: To enforce equality before the law.
Does not protect a person against acts by private individuals. The individual rights
protect only against government action.
The first significant articulation by the Supreme Court that the 14th Amendment rights are
applicable only where state action was present was in the Civil Rights Cases. The case
produced 3 holdings, which have varying degrees of acceptance today:
1. Applicable solely to state action: The Court held the guarantees of equal protection
and due process, given by § 1 of the 14th Amendment apply by their own terms solely
to state action. This holding remains valid today, at least in the sense that in the
absence of congressional legislation, the courts will not find conduct that is
exclusively private to be violative of these 14th Amendment guarantees.
2. Congress without power: The Court held that the grant to Congress in § 5 of the 14th
Amendment of the power to enforce these guarantees did not authorize Congress to
regulate solely private conduct. It is not clear whether this aspect of the Civil
Rights Cases remains good law, but it probably does not.
3. 13th Amendment not applicable: The Court held the statute could not be justified as
an exercise of the 13th Amendment. The Court conceded that the 13th Amendment
applies to private as well as state conduct, since it prevents private individuals from
holding others in slavery. But the Amendment by its terms bars only slavery and
involuntary servitude, and the Court took a narrow view of this phrase.
a. Today, only conduct involving actual peonage has so far been held directly
violative of the 13th Amendment.
Exam Tip: Any time the fact pattern suggest the state or federal government is taking
away something that could be considered life, liberty, or property, then entirely apart
from the issue of whether the government has used proper procedures, you must ask if the
government has carried this out by violating the individual’s substantive interest in life,
liberty, or property.
o Substantive due process limits the substantive power of the government to
regulate certain areas of human life.
o Procedural due process imposes certain procedural requirements when it takes
an individual’s life, liberty, or property.
Though courts have interpreted them identically,
o Fifth Amendment pertains to the federal government.
o Fourteenth Amendment pertains to state action through selective incorporation.
Standard of review
1. Non-fundamental rights: rational relationship
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a. Economic rights
b. Social rights
2. Fundamental rights: strict scrutiny.
In analyzing an SDP problem, first decide if we’re talking about:
1. Fundamental rights
2. Non-fundamental rights
Economic and Social Rights
It is very easy for economic regulation to survive. It only needs to meet two
requirements to conform with SDP:
1. State must be pursuing a legitimate state objective. Virtually any health, safety or
general welfare goal comes within the state’s police power and is thus legitimate.
2. There must be a minimally rational relation between the means chosen by the
legislature and the state objective. The Court will presume the statute is
constitutional unless the legislature has acted in a completely arbitrary and irrational
Slaughter-House Cases  Regulation of butchers was held to be a legitimate state
objective (keeping nasty butcheries out of the city) and the means chosen
(monopolization of slaughterhouses) was rationally related to this state objective.
 Don’t rely on the privileges and immunities phrase. After the Slaughter-House
Cases, that phrase has been neutralized and will get you nowhere.
Abridgements of the liberty of contract were held to violate SDP in Lochner. This was
the Court’s attempt to force laissez-faire economic theory on a society that had outgrown
it. This case was pretty much obliterated by the New Deal line of cases.
 No deference to legislative fact-finding in Lochner. That changed during the New
Deal period.
 Lochner test:
1. Close fit: Very close fit between statute and its objectives.
2. Relation to fundamental interests: Only certain objectives were acceptable.
Health and safety regulations were okay, but readjustment of economic
power/resources was not.
Beginning of application of rationality review to economic rights: The modern
approach, discarding Lochner, was presaged in Nebbia. It explicitly shifted in West
Coast Hotels.
o Nebbia Case: Noted that due process required only that the law shall not be
unreasonable, arbitrary or capricious, and that the means selected shall have a real
and substantial relation to the object sought to be attained.
 Nebbia’s requirement of a substantial means-end relationship was
essentially the test of Lochner. But the Nebbia Court was clearly
determined not to impose upon legislatures its own views about correct
economic policy as the Lochner Court had done.
o West Coast Hotels: The Court upheld a state minimum wage law for women,
explicitly overruling Adkins (discussed in class, but not assigned).
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Presumption of constitutionality: In US v. Carolene Products, the court made it clear
that a presumption of constitutionality would be applied in the case of an economic
regulation subjected to due process attack.
o Starting in Williamson v. Lee Optical, the Court became willing to hypothesize
reasons the legislature may have acted.
a. Current standard of judicial review for economic regulation as
articulated in Williamson v. Lee Optical: The law need not be in every
respect logically consistent with its aims to be constitutional. It is enough that
there is an evil at hand for correction and that it might be thought that the
particular legislative measure was a rational way to correct it.
Non-economic and Fundamental Rights
Test for economic rights: There must be a rational relationship between the statute and a
legitimate state objective.
Test for fundamental rights:
1. State’s objective must be compelling and
2. The relation between that objective and the means must be very close so that the
means can be said to be necessary to achieve the end.
Which rights are fundamental rights:
1. Examples:
a. Sex
b. Marriage
c. Child-bearing
d. Child-rearing
2. The Court has treated most of the interests it has found to be fundamental as falling
within the broad category of the right to privacy. In many instances, e.g., childbearing, a more descriptive term might be the right to personal autonomy.
3. Significance of having 2 tiers of scrutiny: The Court’s decision on the fundamental
issue tends to be dispositive.
a. Non-fundamental right: Where the right is found not to be fundamental, so that
a legitimate state objective and a rational relation between the means chosen and
that objective are all that is required, the Court’s deference to the legislative
judgment is so extreme that there is virtually no scrutiny at all.
b. Fundamental right: If the right is found to be fundamental, the scrutiny is so
strict that few statutes impairing the right can meet the double test of showing that
the state’s objective is compelling and cannot be achieved in a less burdensome
In the Civil Rights Cases in 1883, the outcome hinged on the action/inaction distinction
 whether a state could violate someone’s rights through inaction as well as action. This
case comes down in favor of requiring state action  otherwise you could hold the state
liable for not legislating against the kinds of private violations of rights (e.g., lynching)
that were going on.
Birth Control: Griswold
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o The Court declined to make explicit use of the substantive due process doctrine.
Instead, the opinion found that several of the Bill of Rights guarantees protect the
privacy interest and create a penumbra or zone of privacy.
o Developments since Griswold make it clear that the case ultimately means much
more than that married persons may not be prevented from using birth control. It
means that no person, single or married, may be prohibited from using
contraception, or otherwise be subjected to undue interference with decisions on
o Problems with Griswold:
 Penumbra theory illogical: Douglas, in articulating his penumbra theory,
points to particular aspects of the right of privacy in the First, Third,
Fourth, and Fifth Amendments. He then appears to conclude that under
the collective penumbra of these Amendments, a general, complete right
of privacy must also dwell. (And it is this general right of privacy which
was necessary to decide Griswold as the Court decided it. The privacy
aspects explicitly addressed by those Amendments don’t deal with the
Griswold type of problem.)
 No search at issue: Douglas’s main privacy rationale in Griswold was
that enforcement of the statute would require possible searches of the
marital bedroom, another public inquisition into intimate details. But the
heart of the case was the giving of counseling about birth control use, not
the search of the marital bedroom or other inquisition.
 The property/personal rights distinction: The Douglas opinion declined
to use substantive due process analysis and explicitly rejected the choice
of using a Lochner-type approach. Instead, Douglas used the penumbra
theory as a way of protecting personal rights (like the right of privacy),
while not having to give equally strict scrutiny to economic or property
rights. Yet the penumbra theory seems to be equally applicable to many
property rights.
In Roe v. Wade, the Court held a woman’s right to privacy is a fundamental right
under the 14th Amendment. Blackmun premised the right to choose an abortion on
the constitutional right of privacy which derived from the concept of personal
liberty in the Due Process Clause.
o Rationale: Right of privacy.
 Standard of review: The Court held a woman’s interest in deciding this
issue herself was a fundamental one, which could only be outweighed if:
o There was a compelling state interest in barring or restricting
abortion, and
o The state statute was narrowly drawn so that it fulfilled only that
legitimate state interest.
 Countervailing state interest: The Court found that the state had two
interests which, in particular circumstances, might be compelling:
o Protecting the health of the mother: Only is compelling after the
first trimester when the abortion-related dangers outweigh the livebirth-related ones.
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o Protecting the viability of the fetus: Only applies during the last
trimester when the fetus is viable.
o Fetus is not a person: The Court explicitly rejected the argument
that the state had a compelling interest, even before viability, in
protecting the fetus as a person as the term is used in the 14th
o Precise holding: The actual holding was very specific, dividing pregnancy into 3
 First trimester: During the first trimester, a state may not ban, or even
closely regulate, abortions. The decision to have an abortion and the
manner in which it is to be carried out, are to be left to the pregnant
woman and her physician.
o Rationale: At present, the mortality rate for mothers having
abortions in the first trimester is lower than the rate for full-term
pregnancies. Therefore, the state has no valid (or at least no
compelling) interest in protecting the mother’s health by banning
or closely regulating abortions during this period.
 Second trimester: During the second trimester, the state may protect its
interest in the mother’s health, by regulating the abortion procedure in
ways that are reasonably related to her health.
o No protection of fetus: But the state may protect only the
mother’s health, not the fetus’s life, during this period.
 Third trimester: At the beginning of the third trimester, the Court stated,
the fetus typically becomes viable. That is, it has a capability of
meaningful life outside the mother’s womb. Therefore, after viability, the
state has a compelling interest in protecting the fetus. It may therefore
regulate, or even proscribe, abortion. However, abortion must be
permitted where it is necessary to preserve the life or health of the mother.
o Criticisms of Roe:
 Weighing of relative values: Before viability (i.e., before the third
trimester), the Court favors the mother’s interest (in health, safety, or
perhaps just convenience) over the state’s interest in protecting a potential
human life. Although the Court discusses the strength of the woman’s
interest in some detail, it never states why this interest should outweigh the
state’s interest in protecting the fetus.
 Use of privacy: What the Roe Court calls privacy is not what most people
understand by that term. (Autonomy might be a better term.) The privacy
interest upheld in Roe bears little resemblance to, e.g., the freedom from
official intrusion or official surveillance protected by the 4th Amendment.
Even the penumbra theory in Griswold has to be stretched to cover Roe.
 Lack of abstractness: The Roe decision, with its division of pregnancy
into 3 trimesters, each with its own rules, was obviously a very specific
one. The Court can therefore be criticized for not articulating a precept of
sufficient abstractedness to lift the ruling above the level of a political
judgment based on the evidence currently available from the medial,
physical and social sciences.
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o Response in Casey: These concerns seem to have contributed to the
rejection of the trimester system by the majority in Casey. The
trimester approach has been replaced by a rule that abortion may not
be unduly burdened. This is a more abstract rule, less subject to being
weakened by new medical developments.
 Judicial legislation: A related argument says this decision smacks of
judicial legislation. The Court makes all sorts of factual assumptions
about the present state of medicine, which may not be true for all areas of
the country. These kinds of factual and perhaps even value decisions
might be better left to the legislature.
The modification of Roe by Casey: Roe was partially overruled by Casey.
o States may now restrict abortion as long as they do not place undue burdens on
the woman’s right to choose.
o Abortion is no longer a fundamental right.
o The trimester framework has been abandoned.
o Joint opinion: Reaffirmed the central holding of Roe, which it saw as:
 Recognition of the right of the woman to choose to have an abortion
before viability and to obtain it without undue interference from the state.
 Confirmation of the state’s power to restrict abortions after fetal viability,
if the law contains exceptions for pregnancies endangering the woman’s
life or health.
 Recognition of the state’s legitimate interests from the outset of the
pregnancy in protecting the health of the woman and the life of the fetus.
o Doctrine of stare decisis played a key role in the joint opinion.
o Scalia’s dissent: Scathingly decried the majority opinion for two reasons:
1. Constitution says nothing about this issue.
2. Long-standing traditions of American society have permitted abortion to
be legally proscribed.
o Significance of Casey:
1. Abortion as protected interest: The case seems to ensure that a woman’s
right to decide whether to terminate her pregnancy will be an interest that
receives special constitutional protection.
2. Regulations easier to sustain: On the other hand, state provisions that in
some way regulate the abortion process are much more likely to be
sustained than they were prior to Casey.
a. Cf. Stenberg v. Carhart: Court struck down a ban on partial birth
abortion because:
i. Lack of health exception: The statute did not contain an
exception allow the procedure where it was necessary to
protect the health (as opposed to the life) of the woman.
The majority believed that Casey required a health
ii. Might cover D&E method: The statute’s ambiguous
language might be construed to cover the more common
D&E method of abortion. The mere possibility that the
statute might be so construed was enough to constitute an
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undue burden on a woman’s abortion rights because
practitioners might be reluctant to use the method lest they
be prosecuted for a felony.
iii. Significance of Stenberg: This case probably does not
establish major new abortion doctrine. It does, however,
indicate that by the barest majority, the Court will closely
scrutinize state efforts to regulate abortion procedures, at
least those that are used pre-viability.
3. Future of Roe: The central holding of Roe held up in Stenberg, but it
hangs on by a single vote.
4. Future of a woman’s right to choose: As a result of Casey, the state
clearly have vastly greater leeway to regulate the abortion process than
they had before the composition of the Court began to shift in the late
a. No right to ban: The state may not completely ban abortions
(except that it may ban post-viability abortions that are not
necessary to protect the mother’s life or health). In fact, not even
an exception to protect the life or health of the mother will be
sufficient to justify a blanket ban on pre-viability abortions – the
woman’s right to choose may not be unduly burdened and a
prohibition on all non-medically-necessary abortions would clearly
be an undue burden in the view of the three-justice plurality in
b. Restrictions: States may clearly enact a potpourri of restrictions
as long as these do not unduly burden (defined to mean place
substantial obstacles in the path of) a woman’s right to choose an
abortion before the fetus is viable. In addition to those upheld in
Casey itself, here are some that might be upheld:
i. Type of setting
ii. Public facilities
iii. Types of abortion allowed.
1. Cf. Stenberg
iv. Parental consent for minors’ abortions beyond what was
permitted by Casey.
c. Protection of a very young embryo: One thing that seems clear
from Casey is that there is no constitutional difference now
between an abortion in the first week of pregnancy and an abortion
in the last week before viability. Because the trimester framework
of Roe has been overturned, the only significant dividing line is
that which occurs at viability.
Public funding of abortions:
o Non-therapeutic abortions: In Maher v. Roe, the Court held that a state may
refuse to provide Medicaid funding for non-therapeutic abortions, i.e., abortions
which are not necessary to save the mother’s life. The Court in Maher held that
the state could do this even though it gave Medicaid financing for the expenses
of ordinary childbirth.
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o Funding of medically-necessary abortions: In Harris v. McRae, the Court
held that the state could refuse to fund medically-necessary abortions. The
existence of a constitutionally-protected right did not obligate the government to
grant the funds needed to exercise that right.
A person’s sexual conduct – apart from any issues of procreation or family life – will
now receive substantive due process protection thanks to Lawrence.
o The majority said that liberty presumes an autonomy of self that includes freedom
of thought, belief, expression, and certain intimate conduct. The instant case
involves liberty of the person both in its spatial and more transcendent
Direct holding: Only that states may not criminalize private homosexual conduct
between consenting adults.
Overruled: Bowers v. Hardwick (not studied in class, but studied in Criminal Law).
Bowers overturned because:
o Historical analysis was wrong or, at best, overstated.
o There was an emerging recognition of a liberty interest in sex.
o Other countries (e.g., those in Europe) recognized even before Bowers that the
government should not bar private homosexual conduct.
o States were overturning their anti-sodomy laws and those that still had them had a
pattern of non-enforcement.
o Decisions like Casey and Romer caused serious erosion of Bowers
Standard: Applies rationality review.
o Anti-sodomy laws that apply to heterosexuals as well as homosexuals:
Probably strikes these down too, especially since Kennedy didn’t decide to go for
an equal protection approach.
o Gay Marriage: Explicitly reserved for another day by Kennedy.
The Due Process Clause does not bar the government from procedural irregularities per
se. If the government is not depriving someone of life, liberty or property, it can be as
arbitrary or unfair as it wants.
Procedural Due Process is only a right when the government action involves an
individualized determination.
No state shall make or enforce any law which shall…deny to any person within its jurisdiction
equal protection of the laws.
Only implicated where the government makes a classification.
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Key Concepts:
1. Classifications: The Clause imposes a general restraint on the governmental use of
classifications based on race, but also those based on sex, alienage, illegitimacy,
wealth, or any other characteristic.
2. Federal government: The direct text of the Clause applies only to state governments.
But the federal government is also bound by the same rules of equal protection – the
5th Amendment’s Due Process Clause is interpreted to bar the federal government
from making any classification that would be a violation of the Equal Protection
Clause if done by a state.
3. Government action only: The Equal Protection Clause (and the 5th Amendment’s
Due Process Clause) applies only to government action, not to action by private
citizens. This is the requirement of state action.
4. As applied versus facial: There are 2 different types of attacks Π may make on a
a. Facial: If Π attacks a classification that is clearly written into the statute or
regulation, he is saying that the statute or regulation violates equal protection on
its face.
b. As applied: If Π’s claim is that the statute/regulation does not make a
classification on its face, but is being administered in a purposefully
discriminatory way, then he is claiming that the statute/regulation is a violation of
equal protection as applied.
5. What the Clause Guarantees: The Clause guarantees that people who are similarly
situated will be treated similarly.
6. Three levels of review:
a. Strict scrutiny: The Court gives strict scrutiny to any statute that is based on a
suspect classification that impairs a fundamental right. Where strict scrutiny is
invoked, the classification will be upheld only if it is necessary to promote a
compelling governmental interest. For our purposes, the relevant suspect class is
race. The rights that are fundamental are principally the right to vote, the right to
have access to the courts, and the right to migrate interstate.
Remember: The means-ends fit must be tight in cases where strict
scrutiny is going to be applied.
b. Intermediate scrutiny: This level is for semi-suspect classifications. Under
intermediate scrutiny, the means chosen by the legislature (i.e., the classification)
must be substantially related to an important governmental objective.
The Court will look only at the objectives which actually motivated the
legislature, unlike with rationality review.
c. Rationality review: This standard applies to all classifications that are not based
on a suspect or semi-suspect classification and do not impair a fundamental right.
Under this standard, the classification will be upheld so long as it is conceivable
that the classification bears a rational relationship to a legitimate governmental
objective. Almost every classification survives this easy review.
The Court will look at hypothetical objectives for passing the
legislation, which need not have been the legislature’s actual motives.
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Rationality with bite: Occasionally, the Court has examined legislation
that is finds to have been motivated by animus or hostility towards a
politically-unpopular group. The Court has been willing to strike down
such legislation even though rationality review is used.
1. One or both of these rationales is usually used:
a. That the desire to harm an unpopular group cannot be a
legitimate governmental objective.
b. That to the extent some apparently legitimate state
objective is cited by the statute’s defenders, the means
drawn are so poorly linked to achievement of that objective
that not even a rational relation between means and ends is
2. Most famous case: Romer v. Evans. The Court (led by Justice
Kennedy) struck down a Colorado constitutional amendment that
would have prevented the state or any of its cities from giving
certain protections to gays and lesbians. The Court found the
measure flunked rationality review on 2 bases:
a. There was no legitimate state interest in fact being served.
b. The means chosen by the state were not rationally related to
the (possibly legitimate) interest that the state asserted.
3. City of Cleburne: Court refused to make mental retardation a semisuspect classification, but it still applied more rigorous scrutiny to
Cleburne’s statute than it would to ordinary economic regulation.
7. Suspect classifications: Here are the key features of how courts do their review:
a. Purposeful: Strict scrutiny will only be applied where the differential treatment
of the class is intentional on the part of the government. If the government enacts
a statute or regulation there merely has the unintended effect of burdening, e.g.,
blacks more than whites (Washington v. Davis  disparate impact), the Court
will not use strict scrutiny.
b. Invidious: The discrimination must also be based on prejudice or tending to
denigrate the disfavored class.
Rationale: Ordinarily, groups will protect themselves through the use of
the political process, but:
1. These particular groups don’t usually have very much political
power because the past discrimination against them has included
keeping them out of the voting system; and
2. Even if the minority votes in proportion to its numbers, the
majority is likely to vote as a block against it because of the
minority’s extreme unpopularity.
ii. Discrete and insular minorities are so disfavored and out of the
political mainstream that the courts must make extra efforts to protect
them because the political system won’t.
iii. Traits showing suspectness:
1. Immutability
2. Stereotypes
3. Political powerlessness
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c. Strict = fatal: Once the Court decides that a suspect classification is involved and
that strict scrutiny must be used, the scrutiny is almost always fatal to the
classification scheme.
8. Race-conscious affirmative action: Government programs that attempt to assist
racial or ethnic minorities (i.e., affirmative action programs), and that do so in
explicitly race- or ethnically-conscious ways, are strictly scrutinized just the same as
those that purposefully disadvantage minorities.
9. Gender: Sex-based classifications get intermediate scrutiny. If government
intentionally classifies on the basis of sex, government must show that it is pursuing
an important objective and that the sex-based classification is substantially related
to that objective.
a. The same standard of review is used whether the sex-based classification is
invidious (intended to harm women) or benign (intended to help women, or even
to redress past discrimination against them).
Also found in the 14th Amendment.
Guarantees that people who are similarly situated will be treated similarly.
Courts use strict scrutiny to review claims that a classification violates Π’s equal
protection rights if the classification relates to a suspect classification or a fundamental
right, based on footnote 4 of Carolene Products (“discrete and insular minorities”).
1. Suspect classification
a. Race
i. Discrimination against any racial group merits strict scrutiny, even if
that group has never been the subject of widespread discrimination.
City of Richmond v. J.A. Croson Co.
b. National origin
i. Hernandez v. Texas  scrutiny regarding Mexican-Americans on
juries was treated just the way it would have for African-Americans
c. Alienage (sometimes)
2. Fundamental rights
a. Vote
b. Access to courts
c. Travel interstate
3. Three basic sets of rights at the heart of footnote 4:
a. Rights of the accused (amendments 4 through 8)
b. Restrictions on the political process (rights of voting, association, and free
c. Rights of discrete and insular minorities.
i. Definition: Groups that have historically been unsuccessful at
protecting their interests in the majoritarian democratic political
Despite what O’Connor says in Adarand Contractors v. Pena, strict scrutiny is often
strict in theory and fatal in fact.
o Except: University admissions.  Grutter v. Bollinger
o Between Korematsu v. US and Grutter, no cases involving a racial or ethnic
classification were upheld using strict scrutiny, but it may be getting easier.
Purposeful discrimination may appear in any of 3 ways:
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1. Law discriminates on its face (i.e., by its explicit terms)
a. Strauder v. West Virginia
b. Where a law is found to be facially discriminatory, the Court will not require
showing of discriminatory impact.
2. Law, although facially neutral, is administered in a discriminatory way.
a. Yick Wo v. Hopkins
3. Law, although neutral on its face and applied in accordance with its terms, was
enacted with a purpose of discriminating, as shown by the law’s legislative history,
statements made by legislators, the law’s disparate impact or other circumstantial
evidence of intent.
a. Disparate impact on its own is never enough to prove discriminatory intent,
although it is a factor. Racial discrimination violative of the Equal Protection
Clause exists only where it is a product of discriminatory purpose.
Washington v. Davis
To show purposeful discrimination, the statute must have been enacted because of a
desire to bring about a discriminatory impact, not merely in spite of the probability of
such an impact. Personnel Administrator of Mass. v. Feeney
Summary of Present Court’s Position (Economic and Social-Welfare Laws):
o Purpose need not be actual: The law will be upheld if the means chosen by the
legislature bear a rational relation to any conceivable legitimate legislative
purpose (at least if proffered by any representative of the state, and perhaps even
if only thought of by members of the Court). This will be so even though there is
no evidence that this was the actual purpose motivating the legislation.
o Means-ends link: It is not necessary that there be an actual, empirical link
between the means selected by the legislature and the (actual or theoretical)
legislative objective. All that is necessary is that the legislature could rationally
have believed that there was a link between the means and the end. And the
legislature will be deemed to have been capable of such belief so long as it is
debatable whether such a means-end link exists (even though the Court suspects
that it probably does not).
o Unpopular trait: Finally, if the classification involves an unpopular trait or
affiliation, thereby suggesting bias on the part of the majority, the Court may
subject the statute to a slightly more probing review, even where neither strict nor
intermediate scrutiny is appropriate.
 Mentally retarded people  Cleburne
 Gays and lesbians  Romer v. Evans
Educational Discrimination
Brown v. Board of Education decided that separate could never be equal, although it did
not expressly overrule Plessy. The Court did not rely on the legislative history of the 14th
Amendment as one might have suspected. There are 2 possible bases for the ruling:
1. Social science evidence. We don’t want to think this was the real basis, because
social science evidence is so open to challenge and has an uncertain life expectancy.
2. Freedom of association. Blacks and white should be allowed to freely associate.
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a. Drawback: Then we must acknowledge the countervailing right of people not
to associate with those with whom they do not wish to associate.
In Brown II, the court did several significant things:
1. Gave federal district courts primary responsibility for supervising desegregation
because of:
a. Proximity to local conditions
b. Possible need for further hearings.
2. Court gave no guidelines for carrying out desegregation. Instead, it directed district
courts to use general equitable principles.
a. Freedom of choice plans were not okay. Green v. County School Board 
this was the first time the Court emphasized the effect of the desegregation
measures and not just the intent.
b. Once official segregation existed, good intentions on the part of the school
board were not sufficient. This doctrine is basically still in place today.
3. Desegregation was ordered to be implemented with all deliberate speed  a standard
very open to manipulation.
a. In Cooper v. Aaron, the Little Rock school district was not granted a 2 ½ year
delay in desegregation after the governor called out the National Guard. This
suggests that there needed to be a good faith attempt to integrate and no open
b. Cooper stands for the proposition that having entered into a compact to form
the Union, the states do not retain a right to assert their sovereignty to trump
unwanted federal action.
In Swann v. Charlotte-Mecklenburg Board of Education, the Court made the following
1. Must have de jure segregation. The federal courts may not order a school board to
adjust the racial composition of any of its schools (no matter how great the racial
imbalance) unless there has been a finding of de jure segregation.
a. Even if there is de jure segregation, the remedy cannot include suburban
school districts unless there was a cross-district wrong. Milliken v. Bradley
i. “The scope of the underlying remedy is determined by the nature
and extent of the constitutional violation.” – Milliken
2. In determining a remedy, the district court may consider the ratio of black to white
students in the district, but may not require every school to have precisely that ratio.
3. The face that one or more schools are completely or almost completely single-race
does not necessarily mean that desegregation was not accomplished.
4. Rezoning is okay, and you can even make non-contiguous zones. But you cannot do
this if you have de facto segregation.
5. Busing is okay if it doesn’t impinge on the health of students or on the educational
6. Once the effects of official segregation have been even temporarily remedied, later
imbalances caused by changing residential patterns or other non-official conduct may
not be cured by federal court order. The school board can cure them if it wants to.
White flight  Desegregation of inner city schools generally causes white flight. Some
courts tried to deal with this by ordering states to spend heavily in creating inner-city
magnet schools to try to attract white students. Under Missouri v. Jenkins, federal courts
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have no authority to do this absent proof that the original segregation caused the white
flight. The Court found this was a back-door way of trying to mandate an inter-district
transfer of students, which the lower courts do not have the authority to do.
Segregated colleges and universities  Where a state has maintained a segregated
university system, it is not enough for the state to adopt race-neutral admissions policies.
Instead, the state must show that any policy that was part of its segregative practices has
either been abandoned or is now necessary for sound education. US v. Fordice
Affirmative Action
Standard of review: strict scrutiny  Croson.
o Strict scrutiny is used whether the classification is benign or malign.
o Even where an affirmative action program is being upheld, individualized
determinations are crucial. The correlate of not being judged based on your race
is being judged as an individual.
Racial classifications receive a presumption of unconstitutionality, so they must be:
1. For the purpose of furthering a compelling governmental interest AND
2. Must be narrowly tailored to achieve that interest
The only objectives endorsed by the Court so far are:
1. Redressing of clear past discrimination
a. No findings needed
i. Must be quite strong and specific evidence of past discrimination
ii. Not enough that there is a general belief that there has been
iii. Not enough that minority is under-represented among the “goody” at
issue. Croson
iv. Formal findings are probably not necessary, though (review book 274)
b. Discrimination by whom?
i. Particular governmental entity in question – okay
ii. Not the particular entity, but someone in the same general domain
(e.g., the same industry) – probably okay
iii. General societal discrimination – not okay!
2. Pursuit of diversity in a student body
a. Public colleges and universities may explicitly consider racial status as a
factor that increases the odds of admission, BUT
b. These institutions may not award “points” for minority status or otherwise
pursue mechanical “quota-like” schemes. They must evaluate each candidate
as part of a holistic review that treats race merely as one factor among others.
Virtually all quotas will be struck down in the aftermath of Croson.
1. Is a quota (Grutter v. Bollinger)
a. Program in which a certain fixed number or proportion of opportunities are
reserved exclusively for certain minority groups. (See Bakke)
b. Impose a fixed number or percentage which must be attained or which cannot
be exceeded.
c. Point system Gratz v. Bollinger
2. Is not a quota (Grutter v. Bollinger)
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a. Program with aspirational goals
b. Membership in a certain group is a plus factor, as long as the plus factor is
part of an individualized determination. See Harvard Plan in Bakke.
Taken together, Grutter and Gratz held that:
1. Race-conscious admissions measures will receive strict scrutiny and thus must be
narrowly-tailored to achieve a compelling objective.
2. The pursuit of diversity in the student body can be a compelling objective.
3. A one-student-at-a-time evaluation in which the student’s race is merely one factor
among various ones considered is sufficiently narrowly-tailored; BUT
4. Mechanical approaches resembling quotas, such as automatically awarding an
applicant a fixed number of points towards admission based on his race, are not
narrowly-tailored and therefore violate equal protection.
In Grutter, O’Connor specifically says that the Court endorses Powell’s view in Bakke
that student body diversity is a compelling interest that can justify the use of race in
university admissions.
Grutter and Gratz compared:
1. Grutter:
a. Compelling interest of the law school in having a diverse student body.
O’Connor claimed the Court had a tradition of giving deference to a
university’s academic decisions.
i. Critical mass of minority students  Meaningful representation so
that which meant a number high enough so the minority students will
participate in the classroom and not feel isolated.
ii. Benefits from a broadly diverse class extend to society as a whole 
reliance on amicus briefs from Fortune 500 and military.
iii. Goal of creating diverse elites.
b. Michigan’s plan was sufficiently narrowly tailored to obtain the compelling
objective of a diverse student body.
i. Michigan was not using a quota system. There was no particular
number of minorities needed to constitute critical mass. (Remember:
quotas = evil.)
1. O’Connor narrowly defined quota as: “A program in which a
certain fixed number or proportion of opportunities are
reserved exclusively for certain minority groups;” quotas
“impose a fixed number or percentage which must be attained,
which cannot be exceeded,” and “insulate the individual from
comparison with all other candidates for the available seats.”
2. Like Harvard, Michigan had minimum goals for minority
enrollment, which was fine as long as there was no specific
number firmly in mind.
3. O’Connor gave a lot of weight to year-by-year variation in
number of underrepresented minorities in each class.
ii. Each applicant received a highly individualized, holistic review
considering all the ways in which the applicant might contribute to a
diverse environment.
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1. Non-minority applicants with grades and test scores lower than
the underrepresented minority applicants who were rejected
were frequently accepted.
iii. Consideration of race neutral alternatives. Narrow tailoring does not
require the exhaustion of every conceivable race-neutral alternative.
c. Sunset period of 25 years  not advocated by counsel for Michigan and
pretty optimistic on O’Connor’s part. Still, race-conscious admissions
programs must be limited in duration.
d. Dissenting arguments against the plan, or against race-conscious admissions
practices at all:
i. Diversity was being used as an aesthetic (Thomas).
ii. No compelling interest in maintaining an elite law school. If the law
school wanted to be diverse, it could lower its standards for admission
iii. Naked attempt to achieve racial balancing (Rehnquist).
iv. Affirmative action is bad for its beneficiaries (Thomas).
1. Makes under-prepared students believe they can succeed in the
law school when they can’t.
2. Because many of the students are admitted because of
discrimination, all are tarred as undeserving.
2. Gratz
a. Point system unconstitutional  Not narrowly tailored to achieve the
school’s interest in educational diversity.
i. Did not conform to Powell’s opinion in Bakke.
ii. Flagging applicants who came close to the requisite points for special
individualized review did not remedy flaws because not enough
applicants would get this individualized review.
iii. Large volume of applications not a defense.
b. O’Connor’s concurrence  Why did she think the undergraduate system
flunked and the law school system passed?
i. Pre-determined points ensured each application could not be
individually assessed.
1. Law school’s plan enabled admissions officers to make
nuanced judgments with respect to each applicant’s potential
ii. Flagging for review not a solution
1. Indications were that the review process was a kind of
afterthought and not an integral component of a system of
individualized review.
2. School did not demonstrate in trial court how review system
worked mechanically.
a. Did meaningful percentage of applicants receive such
b. What type of individualized consideration is or is not
used when a file is reviewed?
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c. Dissent  Only Souter and Ginsburg actually said they thought the college’s
point system was constitutional.
i. Souter’s view of quota was that Powell in Bakke condemned the sort
of quota that insulated minority candidates from competition for
certain seats, telling them that no matter how strong their
qualifications, they are never afforded the chance to compete with
applicants from the preferred groups.
ii. Souter saw no difference between the undergraduate and law school
approaches, saying the undergraduate school accomplished with points
what the law school accomplished with individualized review.
[Sounds like crap.]
3. What do we learn from the 2 cases combined?
a. Core principle of affirmative action to produce a racially-diverse class
i. As long as admissions officers individually evaluate each applicant’s
potential contributions to the class, the fact that race is given great
weight will not be a constitutional violation. Grutter.
b. Can’t use points. Not even a whiff of a quota system!
i. Individualized review just for minorities would likely be struck down
on a theory that individualized review is required for every candidate.
c. Need for more admissions officers. Administrative convenience is not an
excuse for dispensing with individualized review.
i. Court might uphold a system in which preliminary point values are
assigned only for the purposes of deciding which applicants should
receive intense individualized review.
4. What questions are still open (and therefore might turn into exam questions)?
a. How much of a plus factor is too much? If the school used an individualized
review system but gave race so much weight that still virtually every
minimally-qualified minority applicant was accepted, would the plan be
upheld? Probably.
i. If court tried to review systems like this, it is hard to see a stopping
ii. Extreme deference was given to the university in Grutter.
b. Will the core principle of pursuit of diversity as a compelling objective in
Grutter be extended to other contexts beyond university admissions?
Probably for those professions outside education, Croson would govern.
i. University faculty  probably would fly because the same arguments
could be used as for diverse university class.
ii. Public secondary school faculty  probably not fly, but would depend
on O’Connor’s vote.
iii. Choices of bosses where the workforce or population served is heavily
integrated  military, police forces in heavily-integrated cities,
correction officer corps in heavily minority prisons.
c. Will the seemingly “gentler” strict scrutiny used in Grutter be used in other
contexts? No indication that this will happen.
d. What will be the rights of particular ethnic and racial minorities?
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i. Members of particular underrepresented minority groups who are
treated by Δ less favorably than other underrepresented minorities.
1. Probably no claim. It seems that schools can do what they
want to achieve diversity as they define it, as long as there is
individualized review.
ii. Members of ethnic minorities who are not deemed to be
underrepresented, and who therefore not only fail to receive a benefit,
but, perhaps, fare even worse than whites generally. Grutter majority
might distinguish between
1. A decision by the undifferentiated white majority to treat itself
less favorably than, e.g., blacks and
2. A decision by an admissions committee (of whatever
composition) to treat, e.g., Jewish and Asian ethnicity as a
minus. This situation looks more like exclusion than the
inclusion that was at the center of the Grutter majority’s
rationale. Policies of exclusion are more constitutionally
Minority Set-Asides
Minority set-asides for, e.g., construction contracts by states and cities (as opposed to the
federal government) will be subjected to strict scrutiny and often found unconstitutional.
o Marshall, joined by Brennan and Blackmun, said in his dissent that he would have
held this to a standard of intermediate scrutiny.
o Findings that would have been necessary to underpin the affirmative action plan
in Croson:
Direct evidence that non-minority contractors had systematically
excluded minority contractors.
ii. Significant statistical differences between the number of qualified
minority contractors available and interested in performing a particular
service and the number actually doing work; or
iii. Individual instances of discrimination supported by statistical proof.
Individual instances standing alone support individual remedies rather
than an affirmative action plan.
What must a public entity wanting to use minority set-asides do?
1. Make very precise findings that there has been past discrimination.
a. If the governmental body itself practiced intentional racial discrimination,
eradicating the effects of the discrimination will probably constitute a
compelling governmental objective.
b. If the governmental body has evidence that others (even private parties) have
practiced discrimination in the past, and shows a danger that non-remedial
government activity would compound the effects of that discrimination,
apparently avoiding this will also suffice as a compelling governmental
c. Past societal discrimination is not going to cut it.
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d. It might be possible to prove past discrimination by inference if you had some
good statistics.
2. Goals  Minority set-asides will probably have to be replaced by “soft” racial
preferences, if racial preferences are allowed at all  Richmond probably would have
fared better if:
a. It expressed its objective as a goal or preference instead of a rigid quota.
b. It used race as one factor among many in deciding how to award contracts.
c. Even a goal or one factor among many plan will probably be struck down if:
i. There is no clear evidence of past discrimination.
ii. There is no showing that race-neutral means would be inadequate.
All race-based programs are subject to strict scrutiny whether they are benign or malign.
Any governmental action that is explicitly race-based must be necessary to achieve a
compelling governmental interest. This is because:
1. There is no easy way to tell which racial classifications are truly benign/remedial and
which ones are ostensibly benign, but in reality motivated by “illegitimate notions of
racial inferiority or simple racial politics.”
2. Classifications based on race carry a danger of stigmatic harm.
3. Unless race-conscious affirmative action plans are strictly scrutinized, as a society we
will never achieve our goal of becoming truly race neutral.
Public entities wishing to use race-conscious affirmative action measures must identify
the discrimination, public or private, with some specificity before it may use raceconscious relief. Croson.
As of Adarand, the rules are the same for minority set-asides by Congress as they are for
other public entities. In Adarand, the Court overturned prior law and announced that
strict scrutiny must be applied to race-based affirmative action schemes imposed by
Congress just as it is applied to those imposed by state and local governments.
o Adarand overturned Metro Broadcasting, which had applied intermediate-level
review, not strict scrutiny, in judging whether “benign” race-conscious action by
Congress violated the Equal Protection rights of non-minorities.
o Adarand made Croson applicable to acts of Congress.
 Court claimed that Metro Broadcasting violated a principle of congruence
 that Equal Protection analysis under the 5th Amendment should be the
same as under the 14th.
 Stevens’ concurrence disputed this for 2 reasons:
1. Congress has special enforcement powers under § 5 of the 14th
Amendment. By contrast, the states’ use of race-conscious
measures was what the Amendment was specifically directed
2. Federal affirmative-action problems represent the will of our
entire nation’s elected representatives, whereas a state or local
program may have an impact on non-resident entities who
played no part in the decision to enact it.
o What Adarand accomplishes:
1. Federalizes Croson.
2. Does not just apply to minority set-asides or to contracting. Also applies to
educational admissions, employment and any other domain.
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3. The degree to which the minority preference determines the outcome will
presumably be part of the equation when the Court decides whether the
program is sufficiently narrowly-tailored.
 Rebuttable presumptions are more likely to pass muster than
irrebuttable ones.
o What Adarand leaves unresolved:
a. What governmental objectives are compelling or how to tell whether the
means chosen are sufficiently narrowly-tailored.
b. Will Congress receive greater deference than state or local government
i. Congress may be entitled to make nationwide findings which would
allow it to protect some wide-sweeping programs.
ii. If Congress does get greater deference, it probably has to be for
actions taken by Congress itself, not by administrative agencies.
c. How does affirmative action play out in hiring, lay-offs, promotions, and other
employment-related decisions? Obviously, the plan must be narrowly-tailored
for a compelling governmental objective. The Court has alluded to 5 possible
objectives in employment, only some of which would survive strict scrutiny:
i. Redress of past discrimination
1. By this employer  golden
2. Broader  if in the same industry…maybe.
ii. Societal discrimination  no
iii. Encouragement of diversity  sometimes
iv. Balanced workforce  no
v. Furnishing of “role models”  no
Gender-based Classifications
The Court today ostensibly applies a single standard to all gender-based classifications,
whether these are found to be truly compensatory or merely paternalistic and
stereotypical: any gender-based classification must be substantially related to important
governmental objectives.
1. Exceedingly persuasive justification: The Court will now, as a result of U.S. v.
Virginia, apply intermediate scrutiny in a quite rigorous way, which makes it closer
to strict scrutiny than to mere rationality review. As the result of U.S. v. Virginia, the
defenders of a gender-based scheme must show an exceedingly persuasive
justification for the scheme, and the Court will apply skeptical scrutiny.
2. Stereotypical thinking versus attempt to reverse discrimination: A gender-based
scheme is especially likely to be invalidated where it is an older one that arguably
stems from a traditional, stereotypical way of thinking about gender roles, rather than
a newer one that is intended to combat past discrimination against women. See U.S.
v. Virginia.
Standard of review: Intermediate scrutiny  Any gender- based classifications must
be substantially related to important governmental objectives.
o “Mere rationality” standard was rejected in Frontiero. Frontiero actually called
for strict scrutiny, but this was reined in.
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o This standard of review is not universally fatal.
1. Most interests are considered important. Exceptions:
a. Administrative convenience  See Frontiero
b. Providing women, but not men, with a “choice of educational environments” as a
rationale for a single-sex admissions policy.
i. But the objective must be the one that actually motivated the legislature,
as opposed to one articulated after the gender-based scheme is adopted.
See U.S. v. Virginia
2. Substantially related has more bite.
a. Some imprecision is allowed. Even if the fit between the means chosen by the
legislature and the governmental objective is far from perfect, the Court may
nonetheless conclude there is a “substantial relation” between means and end.
Nguyen v. INS
The Court is especially likely to strike down a gender-based classification system that
seems to be based on faulty generalizations or stereotypes about the differing abilities
and interests of the two sexes. U.S. v. Virginia.
Discriminatory purpose required:
1. Π must show a discriminatory purpose, not just a discriminatory effect. Even the fact
that legislators may have foreseen the disparate impact is not enough. See Feeney.
2. A legislature’s use of biological factors may have a disparate impact on the two
sexes. Again, only if there is proof that the disparate impact was intended by
lawmakers will the statute be struck down.
3. Where the statute itself explicitly differentiates based on sex, the Court will give
heightened scrutiny to a justification based on biological considerations.
a. Not all schemes which treat the father of an illegitimate child less favorably than
the mother will be struck down. Nguyen
4. Public bathrooms, locker rooms, sleeping quarters and other facilities related to
intimate bodily functions generally remain sex-segregated. The Court has not
explicitly dealt with these issues, but there is little reason to think they would strike
down facilities separation as violative of equal protection.
General Principles of Intermediate Scrutiny:
1. General principles: The decision to apply middle-level or intermediate review does
not by any mean dispose of the matter. The precise way in which the court applies
the intermediate scrutiny thus becomes extremely important.
2. Importance of objectives: The objective sought to be achieved by the statute must be
important even if it need not be compelling.
a. Little bite: This requirement has not proven to have a lot of bite, since most
asserted state objectives have been found to be important. However, there are
some exceptions, such as administrative convenience, conservation of scarce
resources, and offering a choice of educational environments to one sex.
3. Close means-end fit: The means chosen by the state must be substantially related to
achieving the important objective. That is, the means-end fit must be a reasonably
tight one.
a. Less restrictive alternatives: Looking at this requirement another way, the
demands of intermediate scrutiny are more likely to be satisfied if there are no
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available alternatives that would carry out the asserted objectives as well or
better, without causing needless disadvantage to anyone.
b. Smoking out bad motivation: One reason for requiring a close means-end fit is
that it furnishes a way of flushing out unconstitutional motivation. That is, if the
state claims that a particular objective was the motivation behind the statute, yet
the means is not closely related to the ends, the court will be justified in
suspecting that the asserted motivation was not the real one (which may have
been an unconstitutional one).
4. Refusal to hypothesize state purpose: In the intermediate scrutiny area, the Court
will not hypothesize a state objective. Only those objectives which are shown (by
the terms of the statute, the legislative history, or otherwise) to have actually
motivated the legislature will be considered.
Congress’s Power to Reach Private Conduct
The 14th Amendment by its terms applies only to state interferences.
The first time this issue came before the Court, in the Civil Rights Cases, Congress’s
power got a very narrow reading. A majority of the Court held that since only state
action would violate the 14th Amendment, Congress’s enforcement power only
permitted it to restrict state action, not private conduct.
In 2000, in US v. Morrison, the Court held that it is not within Congress’s § 5 powers
to reach purely private conduct, even if that conduct interferes with rights protected by
the 14th Amendment.
o Held that the Civil Rights Cases still represented prevailing law.
Current state of the law:
o Conduct not relating to public officials: When Congress tries to reach purely
private conduct that has nothing to do with state officials, it is now clear under
Morrison that Congress does not have this authority under § 5.
o Interference with state officials: If Congress merely prohibits private
individuals from interfering with state officials’ attempts to furnish equal
protection or due process. Here it seems clear that Congress’s action does fall
within its § 5 remedial powers, notwithstanding Morrison.
o Private-state interaction: Where a private party acts in conjunction with a state
official, it is quite clear that Congress may punish the private conduct.
Broad “remedial” powers: Congress’s power to adopt remedial legislation concerning
the 13th, 14th and 15th Amendments is extremely broad. They can prohibit a state from
acting a particular facially-constitutional law (e.g., literacy test for voting) if Congress
merely has a reasonable fear that the effect (not the purpose) of the law will be to
interfere with a right guaranteed by one of these Amendments.
o Voting Rights Act of 1965  upheld by South Carolina v. Katzenbach.
 Court held that Congress could use any rational means to enforce the 15th
Amendment’s ban on racial discrimination in voting.
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Demonstrates that Congress’s remedial powers under the 15th Amendment
permits it to outlaw practices which the Court would not on its own find to
violate § 1 of that Amendment.
Substantial Modifications: Although South Carolina v. Katzenbach broadly interpreted
Congress’s remedial powers under the Reconstruction Amendments, it did so on an
explicitly remedial theory. Congress’s actions were viewed there as being designed to
combat what, by the Court’s own opinions, constituted past or prospective violations of
the Reconstruction Amendments.
o In City of Boerne v. Flores, the Court decided that it is up to the Court alone, not
Congress, to define the scope of Constitutional rights, even rights (such as those
given by the 14th Amendment) as to which Congress has explicit remedial power.
 Kennedy wrote that Congress has been given the power to enforce, not the
power to determine what constitutes a constitutional violation.
 Kennedy rejected an interpretation of Katzenbach v. Morgan
which would give Congress this determination power. He said this
would produce an unstable, easily-changed constitution.
 Congruence and proportionality test from Boerne: Congress must have
“wide latitude” in determining where the line is between an appropriate
remedial provision and an improper substantive redefinition of a 14th
Amendment right. But, Kennedy said, there must be a congruence and
proportionality between the injury to be prevented or remedied and the
means adopted to that end.
 In other words, Congress cannot expand the substantive sweep of the
Reconstruction Amendments.
Federal attempts to stop states from discriminating:
o Congress can only override state immunity from suit for money damages when it
does so by using the 13th, 14th or 15th Amendment remedial powers to create a
valid remedy against state violations of the rights protected by these amendments
under the 11th Amendment (see below).
o If Congress purports to rely on its Reconstruction Amendment remedial powers to
pass general anti-discrimination or other statutes, and wants to make the states –
not just private individuals – subject to the statute, Congress may do so and allow
private individuals to sue states in federal court for violating it if the statute is a
valid exercise of Congress’s remedial powers. But if the statute goes beyond
Congress’s remedial powers (if it violates the congruence and proportionality
requirement of Boerne), then the private suits against the states are not proper and
the states have immunity from the suits.
 Prior to Seminole Tribe of Florida v. Florida (mentioned in class but not
read), everyone thought Congress could use its Commerce Power to
abrogate states’ 11th Amendment rights, so the 14th Amendment power
didn’t matter. That’s why this federal-state battle has erupted so recently.
 In Bd. of Trustees of Univ. of Alabama v. Garrett, the Court held that
Congress did not have § 5 remedial power to bar the states as employers
from discriminating against employees with disabilities.
 Lack of adequate proof: Since the disabled are not a suspect or
semi-suspect class, the only discrimination against them that would
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be a violation of the 14th Amendment would be irrational
discrimination (see Cleburne).
 Lack of congruence: The remedy Congress chose lacked
congruence and proportionality to any equal protection
violations that the states may have been guilty of. The ADA
required an expenditure of money to make accommodations for the
disabled that went beyond whatever small equal protection
violations the states were guilty of.
 Significance: The 11th Amendment means that a state, when it acts
as an employer, is not liable for money damages if it discriminates
against a disabled employee/applicant in a way that violates the
 Strict scrutiny of Congress’s § 5 powers: Garrett is likely to
prove significant beyond the ADA context. The majority seemed
to be saying that when Congress purports to use its § 5
enforcement powers under the 14th Amendment, it is limited to the
use of measures that are almost perfectly fitted to the remedying of
actual constitutional violations by the states.
o Breyer accused the majority of conducting a harsh review
of Congress’s use of its § 5 powers that was reminiscent of
the Court’s now-discredited 1930s strict scrutiny of
Congress’s use of its commerce powers (see, e.g., Carter
Another illustration of the principle that Congress’s 14th Amendment
remedial powers may only be used to furnish a proportional response to a
constitutional violation came in US v. Morrison under gender-based
 Defenders of the statute argued that it could be upheld as an
exercise of Congress’s 14th Amendment remedial powers, on the
theory that is was a remedy for the inadequate response of state
judicial systems to the problem of gender-based violence.
 In Morrison, the Court disagreed with the defenders’ argument.
The majority said VAWA attempted to remedy misconduct by
private individuals, by letting perpetrators be sued, and VAWA
didn’t affect state officials. Even if a state judicial official refused
to give a fair treatment to gender-based violent crimes against
women, the Act would not punish those officials or motivate them
to change.
 Since only state action could give rise to a 14th Amendment
violation, the Act was not a congruent and proportional response
(Boerne) to a state action that violated women’s equal protection
Summary: If Congress can painstakingly establish that states have
committed major constitutional violations, the Court will permit Congress
to enact narrowly-tailored legislation to prevent further violations of just
that sort. But Congress must
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Bear a very high – in some cases impossibly high – burden to
make that showing of state constitutional violation.
Make its remedial measures extremely tightly fitted to the violation
that has been established.
Text: “The Judicial power of the United States shall not be construed to extend to any
suit in law or equity, commenced or prosecuted against one of the United States by
Citizens of another State, or by Citizens or Subjects of any foreign state.”
Effect: Imposes limitations on the jurisdiction of federal courts.
The amendment is given broader interpretation that its language would suggest. To wit:
o Bars suits by a citizen against his own state.
o Blocks all suits by private citizens against states, whether based on diversity,
alienage, or federal question.
o Congress may not overrule the broad reading of the 11th Amendment and
authorize states to be sued by their own citizens in federal question suits.
o The Amendment applies to suits both at law and at equity. A private citizen
cannot sue to have a state enjoined or ordered to do something, any more than she
can sue to recover damages.
The 11 Amendment does not bar:
o Suits by the federal government against a state.
o Suits against cities or other political subdivisions of a state.
The 11th Amendment only applies in federal courts. It does not prevent a private
individual from suing in a state in state court as long as the state court has jurisdiction.
If Congress passes a statute pursuant to its power under the 13th, 14th or 15th
Amendments, and that statute gives private citizens the right to sue a state in federal
court, this statute will be enforced and won’t be deemed to violate the 11th Amendment.
o Note: The same courtesy is not extended to statutes passed under the Commerce
Power. This abrogation ability is only valid inside this Reconstruction area.
In Garrett and Hibbs, if the legislation can be justified as § 5 legislation, the 11th
Amendment isn’t a problem. If it can’t, the 11th Amendment comes in. There is always
a question about what power Congress used to pass a statute and whether they can
do that.
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